Gull and Repatriation Commission
[2001] AATA 95
•12 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 95
ADMINISTRATIVE APPEALS TRIBUNAL)
Nº V00/117
VETERANS' APPEALS DIVISION)
Re: THELMA GULL
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mrs H.E. Hallowes, Senior Member
Mr A. Argent, Member
Dr C. Re, Member
Date: 12 February 2001
Place: Melbourne
Decision:The decision under review is affirmed.
(sgd) H.E. Hallowes
Senior MemberVETERANS' AFFAIRS — widow's pension — whether death of veteran war-caused — malignant neoplasm of the prostate — whether increase in animal fat consumption
Administrative Appeals Tribunal Act 1975 ss.34B, 37
Veterans' Entitlements Act 1986 ss.8, 120, 120A
Statement of Principles
Instrument N° 95 of 1995 concerning Malignant Neoplasm of Prostate
as amended by Instrument N° 191 of 1996
Repatriation Commission v Deledio (1998) 49 ALD 193
REASONS FOR DECISION
12 February 2001 Mrs H.E. Hallowes, Senior Member
Mr A. Argent, Member
Dr C. Re, Member
This is an application for review of a decision of the Repatriation Commission dated 20 May 1998, which was affirmed by the Veterans' Review Board ("the VRB") on 9 December 1999. The Repatriation Commission decided that the death of Keith Edward Gull, Mrs Gull's late husband, ("the veteran") was not war-caused pursuant to section 8 of the Veterans' Entitlements Act 1986 ("the Act").
The veteran died on 1 March 1992, aged 72 years. The cause of death was certified as:
Disseminated carcinoma prostate – 5 years.
He had no injuries or diseases accepted as war-caused under the Act.
With the consent of the parties, the application was determined under section 34B of the Administrative Appeals Act 1975 ("the AAT Act") after consideration of the documents lodged with the Tribunal pursuant to section 37 of the AAT Act ("the documents"), together with other material provided to the Tribunal by both parties.
The documents include copies of earlier decisions made by the Repatriation Commission with respect to the veteran and:
the veteran's service records;
a statement by Mrs Gull with respect to the veterans' post-war diet;
a statement by the veteran's sister, Mrs E. Sealy, with respect to the veteran's pre-war diet; and
a report dated 1 November 1999 by Ms E. Simonsen, a dietician, based on Mrs Gull's and Mrs Sealy's statements.
The other material considered by the Tribunal was as follows:
a Scientific Review for the Department of Veterans' Affairs — "Animal Fat in the Australian Diet including The Armed Services' Rations in World War 2" by Dr R. English, August 1998, with attachments;
a Background Report Veterans' Affairs Consultancy by Dr J. Kenardy, March 1998 — discussing the relationship, if any, between fat intake and addiction and a current report by Dr Kenardy, dated 27 April 2000, following on from his earlier report;
a written statement by Mrs Gull, dated 24 February 2000;
a written statement by Mr A. Gull, brother of the veteran, dated 23 March 2000;
a report by Dr E. Cole, psychiatrist, dated 7 April 2000;
a report by Dr L. Walton, psychiatrist, dated 2 October 2000;
a report by Associate Professor J. McCarthy, historian, dated 4 August 2000;
clinical notes from the veteran's general practitioner, Dr R. Gaunson and extracts from the veteran's hospital records; and
previous claims made by the veteran and Mrs Gull.
Both parties provided the Tribunal with a statement of their facts and contentions.
The veteran rendered operational service and under subsection 120(1) of the Act the Tribunal shall determine that the death of the veteran was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. In applying subsection 120(1) of the Act, subsection 120(3) provides that the Tribunal shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death of the veteran was war-caused if the material before it does not raise a reasonable hypothesis connecting the death of the veteran with the circumstances of his service. As Mrs Gull lodged her claim after 1 June 1994, section 120A of the Act must also be applied by the Tribunal in reaching its decision. This means that the Tribunal is required to assess the reasonableness of the hypothesis under the Statement of Principles ("SoPs") concerning Malignant Neoplasm of the Prostate in effect when the Repatriation Commission determined the matter on 20 May 1998. Instrument N° 95 of 1995 as amended by Instrument N° 191 of 1996 provided, so far as relevant:
1 . . . the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or death from malignant neoplasm of the prostate with the circumstances of that service, are:
(a). . .
(b)increasing animal fat consumption by at least 40%, and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate: or
(c). . .
The veteran was born on 1 December 1919 in country Victoria. He was one of seven children and he lived on a farm. His father was a rabbit trapper. The family then moved into town. It appears that, prior to enlistment, the veteran assisted his mother in her piggery.
Following enlistment in the Army, the veteran undertook training with his militia unit between 30 September 1940 and 6 December 1940 and between 1 May 1941 and 14 July 1941. He served in the Northern Territory from 1 May 1942 to 25 June 1943 where he transferred to the AIF. Following his service in the Northern Territory, he transferred to a Pioneer Battalion and served in Morotai from 11 April 1945 to 31 May 1945 and in Borneo from 1 June 1945 to 7 February 1946. During most of his service, the veteran was a cook. He was discharged medically fit on 24 June 1946. On enlistment his weight was 138lb (62.7kg) and on discharge it was 136lb (61.8kg). His height was 5 feet 8 inches (173cm).
After service, the veteran was a fisherman before he moved to Melbourne about 50 years ago where he was variously employed by the Gas and Fuel Corporation, and undertook deliveries for Australia Post and then a bakery, finally working as a cleaner. He retired from paid employment at age 65 years.
The veteran's brother, Mr A. Gull was 14 months younger than the veteran. In his statement he outlined the family's pre-war diet and a typical menu. He recorded that the family lived on a sheep and cattle station on the outskirts of a small country town and were basically self-sufficient. He stated that the family would eat a side of mutton about once a fortnight, and frequently ate rabbit. They kept poultry and owned 4 dairy cows, producing their own butter and cream. Butter "would be applied to the sandwiches (although sometimes we would have dripping from the roasts instead of butter)". The evening meal would usually be cooked:
. . . Often we would have rabbit (baked in fat or in stews). . . . we would . . . often have redfin (which was usually fried). . . . We would tend to have sweets following the evening meal. Sweets tended to be cream of rice, rice pudding made with milk and eggs, steamed pudding, plum pudding or bread and butter custard.
Mrs Sealy stated that the family lived in humble circumstances. There was no electricity and little money. Her statement of a typical daily menu was used by Ms Simonsen to construct an estimate of the amount of fat consumed by the late veteran before service.
Mrs Gull recorded in her statement that she met the veteran in 1946 and they were married in 1949. She described the veteran as a beer drinker, stating that he drank reasonably heavily when they were first married. She guessed that on average he would consume about three large bottles of beer per day during the time she knew him. In her statement, she outlined his alcohol intake during their married life and noted that he was a non-smoker. She also stated that the veteran did not discuss his war diet with her other than frequently referring to how much better his meals were during their marriage than during his war service. She had provided a record of the veteran's post-war diet to Ms Simonsen. She stated that the veteran enjoyed eating the fat on meats and that he also loved gravy, butter, desserts and especially cream and that he used cream and butter lavishly. She concluded that it was her belief the veteran "craved the fatty foods after the war because of him being deprived of those foods during the war".
Mrs Gull put to the Tribunal that the veteran trained as an Army cook and worked in that capacity for over four years. She contended that it was during this period his dietary patterns altered because of his introduction to a higher fat diet than that experienced pre-war and the introduction to a high fat diet during war service was the catalyst for the veteran's change of diet and dietary pattern after discharge. In her claim to the Repatriation Commission dated 18 May 1998 Mrs Gull completed the information requested for the veteran's "daily diet before the increase in animal fat" with the reply "normal for the early 40s".
Ms Simonsen constructed sample menus based on discussions she had had with Mrs Gull, Mr Gull, the veteran's sister and brother, and Mrs Sealy in order to calculate the veteran's animal fat intake pre-service and post-service. She calculated that the veteran's pre-service animal fat intake was approximately 77.1gm per day whilst his post-service intake was estimated to be 348.7gm per day.
Dr Cole interviewed Mrs Gull in relation to her late husband on 17 March 2000. He obtained a history of the late veteran's alcohol intake, dietary habits post-service and his personality and moods after war service. Dr Cole concluded:
. . . It is, I believe, a reasonable assumption that he suffered from a chronic generalised anxiety disorder as a result of his war time experiences, although I think it unlikely that he suffered from a post traumatic stress disorder, particularly as he did not appear to suffer from any form of sleep disturbance or nightmares.
The available evidence is to the effect that there was nothing remarkable about his diet before the war, whereas afterwards he showed an undue fondness for fat. One can only speculate as to why this should be so, although I think it fair to say that troops in the field often went hungry because of a shortage of rations and that when they did receive rations they often had a high fat content which could lead to an association between the ingestion of a high fat diet and the satisfaction of hunger, a habit that could continue when a more balanced ration was available. Furthermore, anxious people often seek refuge in eating, so that it could be argued that Mr. Gull's generalised anxiety disorder caused him to eat more and rather less wisely than he might otherwise have done. Against this is the fact that he was never overweight which says a good deal for his metabolism, but further comment upon this aspect is, strictly speaking, outside my province.
In summary, I believe it is possible to erect a reasonable, if rather tenuous, hypothesis connecting his war service with the development of a generalised anxiety disorder leading to a persistence of dietary habits that were acquired during the war. In particular, he would seem to have had a fondness for fat that, so far as one can determine, was not present before his enlistment.Dr Walton interviewed Mrs Gull on 13 September 2000 regarding the veteran's mental state and dietary habits. He provided a report to the Tribunal dated 2 October 2000. He expressed the opinion that:
1.Ms. Gull is simply unable to provide sufficient information of a psychiatric nature to reach any sound diagnostic conclusions, that is, I can make no positive psychiatric diagnosis, nor could I comprehensively exclude the proposition that the veteran may have suffered from some war-related psychiatric condition but there was simply no clear indication that he did. There are indications that the veteran was reluctant to discuss his war experiences, although that would seem to be a comment which might be applied to him generally about his life experiences. While he was specifically avoidant of visiting Changi Prison, and my understanding is that he was not a prisoner of war, there or elsewhere, he was a reasonably regular attender at his RSL and he would participate in ANZAC Day marches. In any event, no sound diagnostic conclusions can be drawn from this behaviour.
Similarly, I can find no convincing evidence that Mr. Gull's predilections for fatty foods is the consequence of any psychiatric condition.
2.. . .
It is certainly my opinion that this man was not driven towards excessive fat consumption because of any underlying psychiatric condition.
As best I can determine from the history provided by the widow, the veteran's excessive fat consumption did not occur during his period of military service and the change came about some years later, associated with an improvement in financial circumstances.
Thus, in my opinion, the veteran does not satisfy the Statement of Principles.3.The only additional comment I would make is that I believe my colleague, Dr. E. Cole, wisely describes as speculative why the veteran may have changed his dietary habits. I would apply the same adjective to the diagnosis of generalised anxiety disorder, let alone connecting that with a change in dietary habits.
Dr Kenardy has reached the conclusion that:
. . . The studies reviewed above illustrate how a constellation of variables may influence an individual's preference for (and consumption of) fat. These include availability, prior experience (e.g. learning in early childhood and subsequent exposure), the organismic state (e.g. degree of hunger), pleasurable or reinforcing qualities associated with the food in question (eg., palatability, post-ingestive hedonic responses and sociocultural norms); and cognitive (eg., knowledge, beliefs and attitudes) factors. These factors may all have an influence on an individual's habitual consumption of fat in their diet. However, the direct relationship between fat preference and fat consumption has yet to be established, and is likely to be complex and multifactorial. Furthermore little is known about the pathways from fat preference and consumption to habit.
Fat preference appears to be established very early in life and it has been hypothesised that this is via conditioned learning. The problem lies in modulation of fat consumption downward in that there appears to be no efficient physiological mechanisms to control fat consumption. It has been proposed that this contributes to a "passive" over-consumption of fat. Furthermore fat preference is likely to be more or less universal . . . .
At present it is [sic] cannot be concluded that fat itself is habit-forming. The evidence indicates that fat preference may be associated with consumption, but this is a relative relationship, since higher fat is generally preferred over lower fat in the population. . . .
It is possible that a person (specifically a young adult) could develop a generally increased preference and consumption of fat in excess of need following exposure to elevated levels of fat in a diet, in the presence of a previously lower consumption of fat? . . . However, as stated above, the sole influence of fat itself in causing a specific response within a particular person is very difficult to determine. As stated above higher fat is generally likely to be preferred as a food, and fat generally likely to be over-consumed. Thus any specific conclusions drawn about fat exposure and preference must be tempered by these broader influences on the population of fat consumers. . . .Dr English's review specifically examines the levels of animal fat in the Australian diet pre-World War 2, during the War years 1939-1945 both in the armed services and the civilian diets, immediately post-World War 2 and to the present time. The review notes that the average total fat intake of the adult male civilian diet pre-World War 2 was 130-149g/head/day of which 114-130g/head/day consisted of animal fat. Further, Dr English noted that there is no evidence from the analysis of civilian and service diets that the rations available to servicemen during World War 2 contained excessive amounts of animal fat compared to civilian diets, although there is some evidence that the rations for Papua New Guinea and the Pacific Islands may have exceeded that of the civilian diet by 8.0 per cent. Post-war rationing of meat occurred in Australia until 1948 and of butter until 1950. However total fat intake in the Australian diet generally remained similar over the time period 1936-1939 to 1946-1947, buffered by an increase in milk and milk products. The review notes that, between 1938 and 1939 and between 1993 and 1994, the daily consumption of animal fat dropped in the general population from an average of 116.9g/head/day to 56.0g/head/day due partly to reduction in the use of animal fats and partly to an increase in the use of non-animal fats.
Dr English reports:
. . . it has become increasingly difficult to maintain a level of animal fat intake above 70g per day, because of major changes in the Australian diet. Maintaining this level would present particular difficulties for older men, because of their reduced energy requirements and lower intake of food.
In addressing the validity of assessment of past food intake, Dr English notes:
The evidence from the literature clearly shows the questionable validity of recall of past diets when compared with previously recorded data. Problems identified in recalling food consumption in the past which are pertinent to the claims concerning animal fat consumption and malignant neoplasm of the prostate, include the age of the surrogate providing the information, the extensive time period for recall, errors of omission and commission, and unintentional elaboration with distortion of memory due to the effect of a range of factors, such as expectations and needs. . . .
Dr English concluded:
On the basis of the above review and the universal agreement in the literature that many complex factors affect an individual's food patterns, it is considered speculative to place much weight on a period of military service as responsible for food consumption patterns maintained for a minimum period of 20 years, especially during a period when medical/health advice, changing food patterns in the community, and food availability in the market-place are contrary to these food consumption patterns. It is proposed that such a link can only be described as tenuous, and unsupported by a reasonable level of evidence.
Professor McCarthy was asked by the Repatriation Commission to comment on the issue raised in the application of the possibility that the veteran may have suffered a chronic generalised anxiety disorder which was war-caused. After examining the veteran's service records, Professor McCarthy concluded that:
. . . it might be argued that by June 1945, the late Veteran was serving as a cook and thus would not have been part of the initial assault force. This assumption might overlook the fact that assault troops required to be fed and the late veteran had been trained as an infantryman and the Battalion was responsible for the defence of all the beaches within what was known as Beach Master's Area. . . .
Entries in the War Diary might suggest that the late Veteran did face danger from enemy action while on Labuan Island. . . .
There is no doubt that vicious fighting took place on Labuan Island and that the late veteran might well have been involved in some of it. The threat of serious injury or death must have been present.
It was submitted on Mrs Gull's behalf that the veteran increased his animal fat consumption during war service due to the rations on issue; that this increase in consumption led to a preference for fatty foods that remained with the veteran post-war and this, in turn, contributed to his malignant neoplasm of the prostate which caused his death. In particular, it was submitted that:
(a)the veteran was a cook and he had "greater access to foods high in fat" content;
(b)the veteran's six months service in Morotai and Labuan which exposed him to Army rations which had a high fat content; and
(c)in particular, Dr Kenardy's opinion that:
. . . It is possible that a person (specifically a young adult) could develop a generally increased preference and consumption of fat in excess of need following exposure to elevated levels of fat in a diet, in the presence of a previously lower consumption of fat? . . .
It was not pursued on Mrs Gull's behalf that the veteran's undiagnosed postulated chronic anxiety disorder was a cause of his increased fat intake.
It was the respondent's contention that:
(a)the veteran's pre-enlistment diet was at the level of the general population;
(b)on the evidence of Dr English the percentage increase in animal fat during the veteran's service did not reach the figure specified in the SoPs;
(c)the veteran's post-war diet, from 1946 to 1949, is not recorded and that, from 1949 onwards, the animal fat content in his diet was higher than he consumed during service; and
(d)there was no increase in the veteran's weight during his service and his weight post-war remained stable which does not appear to accord with the diets claimed.
In Repatriation Commission v Deledio (1998) 49 ALD 193, at page 206, the Full Federal Court restated the course which a tribunal is to take as follows:
1.The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B (2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The tribunal must then proceed to consider under s 120 (1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
It was contended on behalf of Mrs Gull that a hypothesis was raised connecting the veteran's death with the circumstances of his war service as outlined in paragraph 20 above. There is material before the Tribunal raising such a hypothesis and there is a SoPs in force. Turning to the issue as to whether the hypothesis raised is consistent with the template in the SoPs, the Tribunal has decided that factor 1(b) in the relevant SoPs does not exist such that it could be said that a reasonable hypothesis has been raised connecting the veteran's death from malignant neoplasm of the prostate with the circumstances of his war service. As both Dr Walton and Dr Cole commented, it is speculative as to whether the veteran's fondness for fat was connected with his war service.
The evidence of Ms Simonsen points to the veteran's fat consumption increasing after war service, but the menu she drew up omits items which the veteran's sister said were part of the family diet and the Tribunal is satisfied, beyond reasonable doubt, that Ms Simonsen has significantly under estimated the veteran's fat intake pre-war. As pointed out by Dr English, recall of food consumption is questionable. Ms Simonsen's estimation was very low compared with the estimate of the Australian average pre-war. Before enlistment, the veteran lived on a farm where he had access to milk, butter and cream and it may be postulated that he consumed more animal fat products than people living in a city. The Tribunal further notes Dr English's research. She states that "there is no evidence from the analysis of civilian and service diets that the rations available to servicemen during the Second World War contained excessive amounts of animal fat compared with civilian diets".
It appears from the history provided to Dr Walton of changes in the veteran's diet by Mrs Gull that they occurred some years after the veteran's discharge and may have been associated with improvement in the family's financial circumstances. Apart from Mrs Gull's evidence with respect to the veteran's alcohol intake from the time she met him, there is no evidence before the Tribunal with respect to the veteran's diet after service until they were married in 1949. Rationing after World War 2 may have reduced levels of animal fat consumption in the civilian population diet from pre-war levels. Further, the absence of weight gain during the veteran's life, despite the reported high level of fat intake post-war as estimated by Ms Simonsen, casts further doubt in the Tribunal's mind that the veteran's post-war intake of animal fat was accurate. Dr Kenardy concluded that animal fat intake does not become habit forming. A relatively short period of altered fat intake, if this did occur during service, is unlikely to lead to an increase in the veteran's consumption of animal fat for at least 20 years. In lodging her claim for widow's pension Mrs Gull made reference to the family's economic position and that meals regularly included lambs fry and sausages.
Having found that the hypothesis put forward on Mrs Gull's behalf does not contain a factor which must, as a minimum, exist to connect the death of the veteran from malignant neoplasm of the prostate with the circumstances of his war service, the hypothesis is not reasonable and the Tribunal will affirm the decision under review. Even if the Tribunal had found the hypothesis raised to be a reasonable one, it would be satisfied beyond reasonable doubt that the veteran's death was not war-caused on the basis of the evidence before it.
I certify that the twenty-seven [27] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H.E. Hallowes, Senior Member
Mr A. Argent, Member
Dr C. Re, Member
(sgd) Catherine Thomas
Personal AssistantDate/s of Hearing: DECIDED ON PAPERS
Date of Decision: 12.02.01
Solicitor for the Applicant: Ms J. Baful, Melbourne Legacy
Solicitor for the Respondent: Mr R. Douglass, Departmental Advocate
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